Bibliographic citations
Malatesta, D., (2020). Las nuevas tecnologías de la información y la vulneración del derecho a la intimidad protegido por el Habeas Data [Tesis, Universidad Andina del Cusco]. https://hdl.handle.net/20.500.12557/3584
Malatesta, D., Las nuevas tecnologías de la información y la vulneración del derecho a la intimidad protegido por el Habeas Data [Tesis]. : Universidad Andina del Cusco; 2020. https://hdl.handle.net/20.500.12557/3584
@mastersthesis{sunedu/3043206,
title = "Las nuevas tecnologías de la información y la vulneración del derecho a la intimidad protegido por el Habeas Data",
author = "Malatesta Carbajal, Denisse Noelia",
publisher = "Universidad Andina del Cusco",
year = "2020"
}
The purpose of this study was to determine what the legal are gaps in the current regulations that regulate the new information technologies, hereinafter (NIT’s) that violate the protection of the right to privacy. The present investigation was carried out with the qualitative method, of an exploratory-descriptive scope, current doctrinal, normative and judicial documentation was collected and analyzed at local, national and international level where it was evidenced the existence of legal gaps that violate the right to privacy in the current regulations that regulate the new information technologies. The methodological design was action research. The sample unit was the analysis of eighteen (18) pronouncements issued by jurisdictional bodies in constitutional, civil, criminal, administrative matters at local, national and international level, judicial pronouncements that were selected by sampling for convenience, to collect the data we used the observation and analysis of doctrinal, jurisprudential and statistical content. From the review of the files entered into the Constitutional Court between 2012-2017, Habeas Data is one of the constitutional processes less used by citizens against an affectation of the right to privacy, because, during the indicated years they only entered a total of sixty-six (66) files referring to protection of the right to privacy and protection of personal data in relation to the use of NIT’s. The results show that 92% of Peruvians have at least one NIT’s, and more than 52% of the population has access to the internet and social networks and search engines are the activities most demanded by users. In relation to the Peruvian Constitutional Court, three (03) jurisprudences of the years 2002, 2007, 2011 were reviewed, selecting only the most prominent ones related to the violation of the right to privacy and protection of personal data before the New Information Technologies. It is noted that in fifteen (15) the actions have been directed towards digital legal persons, highlighting social networks and search engines. Of the eighteen (18) judgments analyzed, in seven (07) of them the owners of the action have resorted to the jurisdictional body through constitutional and civil actions, being the most appealed in countries like Colombia the Guardianship with 27.77%, followed of the Action of Habeas dates and the civil route in Peru and Spain with 22.22%. In eight (08) of the failures analyzed, it was found that the most used means within NIT’s to violate the right to privacy and data protection is through the publication of videos, photos, comments, messages, with injurious content or pejorative. In relation to the foundations of the Court to establish the impact on the right to privacy or the protection of personal data, in twelve (12) judgments, equivalent to 66.67% of the total, the courts have used the Weighting Test of fundamental rights, to establish the violation of the right to privacy as opposed to the right to information or freedom of expression. In sixteen (16) of the judgments analyzed equivalent to 88.89% the courts have declared the action founded, in the other two (02) remaining decisions have declared the action inadmissible. In the results it was also found that there are four (04) the main difficulties that the owners find to direct an action against a violation of the right to privacy or data protection through the use of NIT’s, thus, in more than half Of the judgments reviewed, 55% of the owners are unaware of the appropriate judicial mechanism to resort to in the face of the aforementioned fundamental rights. The Courts also find it difficult to resolve these cases, thus, the most relevant difficulty is where to direct the notification, since social networks or search engines do not have a domicile established in the country where the possible violation occurs, this difficulty It is present in six (06) of the judgments analyzed, constituting 33.33% of the total difficulties encountered by the courts, another significant difficulty encountered in Peru is the lack of binding jurisprudence regarding the issue of violation of the right to intimacy in the context of NIT’s , this difficulty is present in four (04) of the failures analyzed. No less important is to highlight the issue of civil reparation to the victim in the face of a violation of the right to privacy or the protection of personal data, thus, in eleven (11) of the judgments analyzed, the Court declared the claim founded and the same time ordered in favor of the injured party compensation for moral damages caused against an affectation to the right to privacy proven, so in seven (07) of the judgments analyzed this criterion was established, but in eleven (11) of them it was not considered This point, since the legislation does not refer to compensation in cases of violation of the right to intimidation through NIT’s. In conclusion, and according to the sample unit, if there is a violation of the right to privacy and the protection of personal data through the misuse of NIT’s, against this reality, the State has not carried out a dissemination of the right to privacy or the protection of personal data and less of the existing legal mechanisms and procedures that can be used for the protection of these fundamental rights, so the Habeas Data constitutional process can make these protection effective against a violation of The aforementioned rights, likewise the Trilateral Guardianship procedure. It is the responsibility of the Constitutional Court and the Personal Data Protection Authority to fulfill a guiding function regarding the validity of the right to privacy and data protection. In the face of the gaps in the regulations that regulate NIT’s the systematization of dispersed regulations is necessary, the unification of details regarding what NIT’s comprise, restructuring the concept of intimacy in the context of NIT’s, clearly establishing the various mechanisms existing so that the citizen can make effective the defense of his right to privacy, and finally all affectation must be duly sanctioned including the payment of a civil reparation in favor of the affected in these cases.
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